Regarding the recent Adjustment Of Status Memo
On May 21, 2026, USCIS issued a policy memo that purports to change how every adjustment of status case is decided. But the law hasn’t changed. And neither has our commitment to fight for you.
What Is Adjustment of Status— and Why Does This Memo Matter?
Adjustment of status is the legal process that allows someone already inside the United States to apply for a green card without leaving the country. It is governed by Section 245 of the Immigration and Nationality Act. Every year, hundreds of thousands of people, spouses of U.S. citizens, H-1B workers, families with pending petitions, use this process to become lawful permanent residents.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, instructing its officers to treat this process as an extraordinary act of “administrative grace” that should not “supersede the regular consular visa-issuing process.”
In practical terms, USCIS is telling its officers that if an applicant could have left the country and applied for their green card through a U.S. consulate abroad, that choice to stay and adjust inside the U.S. is now an adverse factor. The memo says applicants in this position may need to show unusual or even outstanding equities to overcome it.
This is not a new law. Congress did not pass a statute. No regulation went through notice-and-comment rulemaking. This is a policy memo, internal guidance, that attempts to reshape how officers exercise discretion in hundreds of thousands of cases. And it is wrong.
Where the Word “Extraordinary” Actually Comes From
The press release that accompanied the memo rests on one word to create panic: extraordinary. The memo itself cites thirty-three cases to make the point. But take one of the citations for instance: a 1967 case called Chen v. Foley, which involved an applicant who married a U.S. citizen while simultaneously married to his wife abroad, whom he argued was no longer alive.
And here is the part the USCIS memo does not mention: many of the cases that were quoted in the memo involved applicants convicted of drug trafficking, alien smuggling, heroin importation, or marriage fraud. And the memo takes language from those extreme situations and applies it to everyone, including people with clean records, stable families, and decades of community ties.
Why USCIS Cannot Simply Deny Your Adjustment of Status Application
The memo leans heavily on the word discretion. And it is true: adjustment of status is discretionary. But discretion has limits. It always has.
Discretion is not a license to deny for any reason. USCIS’ own Policy Manual states that “having authority to deny a benefit in the exercise of discretion is not a license to deny a benefit for just any reason” and that there are “serious limits on exercising discretion.” The exercise of discretion cannot be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.
Every case requires individualized analysis. Officers cannot apply this memo as a blanket presumption against adjustment.
Absence of adverse factors means discretion must be exercised favorably. If you have no criminal history, no fraud, and no immigration violations, a denial based solely on the memo’s framing contradicts decades of immigration law precedent.
Denials must be explained in writing. A denial that recites the memo’s language without engaging with your specific equities, your family, your community ties, your contributions, is legally deficient.
The Dual-Intent Problem: How the Memo Contradicts Congress’s Own Immigration System
Here is where the memo’s logic collapses.
Congress created entire categories of nonimmigrant visas (H-1B, L-1, O-1, among others) that carry what is known as dual intent. This means the visa holder is lawfully admitted to the United States with the explicit understanding that they may seek permanent residence. They are not pretending they will leave. The government knows, at the moment of admission, that these individuals may adjust status.
If adjustment of status were truly a relief that should not supersede the regular consular visa-issuing process, as the memo claims, then why did Congress build visa categories that presuppose adjustment? Why would the government admit someone under a dual-intent visa, knowing they may opt to stay permanently, and then penalize them for doing exactly what the visa contemplated?
The answer is that Congress did not design the immigration system the way this memo describes it. The memo presents consular processing as the normal path and adjustment as the rare deviation. But for hundreds of thousands of people in dual-intent categories, adjustment is the normal path. It is the path Congress built for them.
Congress Built Exemptions for a Green Card Process It Intended People to Use
The memo’s thesis that adjustment is extraordinary and nearly disfavored is refuted by Congress’s own statutory choices:
Immediate relative exemptions under INA § 245(c). Congress specifically exempted immediate relatives of U.S. citizens (spouses, parents, and minor children) from some bars that would otherwise prevent adjustment, such as bars for unlawful status and unauthorized employment.
The 180-day forgiveness under INA § 245(k). For employment-based applicants, Congress forgave up to 180 days of status violations and unauthorized employment. You do not create a forgiveness provision for a relief you intend to be nearly impossible to obtain.
Section 245(i) and the LIFE Act. In 1994 and again in 2000, Congress enacted provisions allowing people who entered without inspection to adjust status upon payment of a penalty fee. Congress literally expanded adjustment of status to cover people who had never been admitted or paroled at all.
You do not build an elaborate architecture of exemptions, forgiveness provisions, and expansions for a relief you intend officers to deny as a matter of course. The statutory structure proves that Congress meant for adjustment to be a functioning, regularly used pathway, not a privilege.
The 10-Year Unlawful Presence Bar: Where the Memo Produces Absurd Results
This is perhaps the most concrete way the memo fails the people it affects.
The memo tells officers that applicants should have pursued consular processing instead of adjusting. But for many applicants, particularly immediate relatives who have lived in the United States for years, leaving to consular process triggers a catastrophic penalty.
Under INA § 212(a)(9)(B), anyone who has accumulated one year or more of unlawful presence in the United States becomes inadmissible for ten years upon departure. The bar is triggered by leaving. It does not apply while the person remains inside the country.
So the memo creates a trap:
- Stay and adjust? The memo says your decision to stay is an adverse factor that counts against you.
- Leave to consular process? You trigger a 10-year bar that makes you inadmissible. You then need a waiver requiring a showing of extreme hardship — which may take years and which many applicants cannot meet.
Congress created the § 245(c) exemptions for immediate relatives precisely because it understood this problem. It knew these people could not leave without facing decade-long consequences. Congress gave them a path to adjust inside the country. PM-602-0199 takes that path away by converting it from a routine process into an extraordinary one requiring unusual or outstanding equities.
The result is an absurdity Congress never intended: a person who is statutorily eligible, who has an approved petition, who has a qualifying family relationship, penalized for using the exact pathway Congress designed for them.
Massa Viana Law Is Prepared to Litigate
We are not waiting to see what happens. We are preparing now.
If USCIS begins denying adjustment of status applications based on the reasoning in PM-602-0199—applying it as a categorical presumption rather than conducting genuine case-by-case analysis—we are prepared to challenge those denials in federal court under the Administrative Procedure Act on behalf of our clients.
Frequently Asked Questions About the USCIS Adjustment of Status Memo
Can USCIS deny my green card application even though I’m eligible?Adjustment of status is discretionary, which means USCIS can deny an application even when the applicant meets the technical eligibility requirements. However, discretion has legal limits: officers cannot deny applications arbitrarily, and every denial must include a written explanation of why negative factors outweigh positive ones in your specific case.
Does PM-602-0199 change the law?
No. This is a policy memorandum, internal guidance to USCIS officers. It does not change the statute, the regulations, or your eligibility. But it signals that officers may apply heightened scrutiny to the discretionary component of adjustment of status cases.
Should I withdraw my I-485 adjustment of status application?
Do not make any changes to a pending application without consulting an immigration attorney. The memo is guidance, not law, and withdrawing could have consequences that are difficult to reverse.
I’m on an H-1B visa. Does this memo affect me?
The memo affects people with a pending or future adjustment of status application. However, H-1B holders (along with L-1 and O-1 visa holders) are in dual-intent visa categories that Congress created with the explicit understanding that the holder may seek permanent residence.
What should I do if my adjustment of status is denied citing this memo?
Read the denial carefully. If it recites boilerplate language about extraordinary relief without engaging with your specific positive factors it may be legally deficient and challengeable.
Does this affect family-based green card applications?
Yes. The memo applies to family-based cases. However, Congress specifically exempted immediate relatives of U.S. citizens from some of the bars that apply to other applicants, a statutory choice the memo cannot override.
Talk to an Adjustment of Status Attorney in Massachusetts or Rhode Island
The law has not changed. Your eligibility has not changed. But the environment has shifted, and preparation matters.
If you are planning to file for adjustment of status or if you have received a denial that you believe was based on an abuse of discretion, we want to hear from you.
At Massa Viana Law, Immigration is personal. We have lived through the immigration system ourselves. We know what it feels like when the rules seem to shift beneath your feet. And we know how to fight back.
